A bank's contractual right to consolidate a company's current account with loan accounts does not constitute a 'charge' within s 440B of the Corporations Law and may be exercised during administration without the administrator's consent or leave of the Court. However, the administrators' statutory lien and right of indemnity under ss 443D-443F attach to the company's property (including the chose in action represented by the current account balance) at the time debts are incurred and remuneration accrues, and consolidation takes effect subject to that priority. The question whether Australian law should follow the House of Lords in BCCI (No 8) in rejecting the doctrine of conceptual impossibility regarding charges over a debtor's own debt was left open, with Spigelman CJ indicating it should be possible in an appropriate case.
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